ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS 13-20
DATE: 2015-09-01
BETWEEN:
Lawrence Francis Cawker
Applicant
– and –
Moira Ramsay Hackshaw
Respondent
Kim Taylor, for the Applicant
Gloria Nardi-Hall, for the Respondent
HEARD: July 16, 2015
REASONS FOR JUDGMENT
the honourable mr. JUSTICE P.J. Flynn
[1] The (Respondent) mother brings this motion to change the Final Order of Stayshyn, J dated September 7, 2005, as it dealt with child support for the children, Shelby, then 14, and Travis, then 12.
[2] Today the children are 24 and 22.
[3] The Motion to Change was made January 3, 2013 and filed January 14, 2013.
[4] The original order provided for child support for the two children in the amount of $518 per month based on the father’s (Applicant’s) deemed gross annual income of approximately $36,000.
[5] The father is current and has paid that support pursuant to a support deduction order by way of payroll deductions at source.
[6] Exhibit 1 shows that the father’s income has risen from $37,639 in 2009 to $46,465 in 2014.
[7] By the same token, the mother’s income has increased in those years from $27,489 to $36,898. So, the ratio of the parties’ income now is 56:44.
[8] The original order also decreed that “the parties shall have extraordinary expenses (including orthodontal bills) pursuant to the provisions of the Federal Child Support Guidelines.”
[9] The mother now seeks:
a. That the father’s arrears of child support (including special and extraordinary expenses) from January 1, 2009 to July 10, 2015 be fixed at $45,251 and payable immediately;
b. That the father pay ongoing child support for Travis in the amount of $140 per month, commencing September 1, 2015;
c. That the father pay $708 per month commencing on May 1, 2016 and ending on April 30, 2017 as his proportionate share of Shelby’s educational costs for her last year of University;
d. That the father pay 56% of the children’s special or extraordinary expenses from and after September 1, 2015;
e. That he parties exchange income tax returns, all schedules and attachments, and notices of assessment annually by June 1 so long as at least one child is enrolled in a full time program of post-secondary education.
[10] The father takes the view that this case is not one where the court ought to exercise its discretion to order retroactive change to the child support provisions of the original order. In particular, the father argues that this court ought to look no further back than January 2013 (the filing of the motion to change), which was the effective date of notice from the mother that she sought an increase in support from him.
[11] The father also relies on D.B.S. v. S.R.G., 2006 SCC 37 for the proposition that the mother’s delay in seeking retroactive support is not justifiable, where she knew that higher support payments were warranted but arbitrarily decided not to apply and did not give any indication that she wished for the existing support order to be renegotiated before she filed the motion.
[12] The father further submits that the mother had every opportunity to provide effective notice prior to Shelby starting University in September 2009, or at very least long before the motion was filed.
[13] The father also relies upon the fact that he was bereft of information about the children’s circumstances because he had no contact with them on account of their alienation from him at the hands of their mother. And because he faithfully complied with the Stayshyn Order, he says he cannot be seen to be blameworthy.
[14] Now, it is not exactly accurate that he fully complied with the Stayshyn Order. The mother has provided evidence of the father’s following failings:
a. Failing to provide his income information;
b. Failing to increase support when his income increased;
c. Failing to provide his address;
d. Failing to provide information regarding health benefits for the children; and
e. Failing to provide life insurance information (in fact, his most recent financial statement shows that he has no life insurance coverage).
[15] As to the lack of contact, there have been unresolved access issues that brought the parties back to court 32 times from late 2006 until January 2011, but the father abandoned his motion and his lawyer was removed from the record in January 2011. On the dismissal of his motion in his absence, costs of $11,000 were awarded against him. He has paid all but $750 of that cost order. But that too must count as a failure on his part.
[16] The mother says she couldn’t give notice of this change earlier because he “disappeared”. The father says otherwise – that he could have been as easily served with the same motion earlier. Moreover, he kept current the payment of the child support ordered by Stayshyn, J.
[17] I am satisfied that the passage of time, the changes in income of the parties and the fact that both children are University students now constitute material changes and gives this court jurisdiction under the Divorce Act to consider the child support issues anew.
[18] Both parties have an obligation to assist their children with their educational expenses, in proportion to their incomes.
[19] Clearly, at the time of the original order, Shelby and Travis were children of the marriage entitled to support.
[20] They are now both adults, but in my view, remain children of the marriage. Travis never lost his status. The mother concedes that Shelby was not entitled to support from May 2010 until August 2012 when she only studied part-time and supported herself.
[21] In my view, the table amount is not appropriate here. The so-called “summer formula” or some variant of that should determine the appropriate level of support. (Travis comes home from school in the summer. Shelby does not.)
[22] What has been lacking from the father’s support for his children (besides the annual changes in table amount that would have been occasioned by his changing income) is his contribution to their special and extraordinary expenses, namely the costs of their University education.
[23] We are beyond the days when only the first University degree would be eligible for support. Each case has to be looked at on its own merits, but I am satisfied that the education and career plans put forward here are reasonable and certainly in the children’s best interests.
[24] Moreover, the mother has put forward an extremely detailed and very well balanced budget of expenses. I find it ironic and appropriate that the mother relies for much of her argument on Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291 (SCJ) a decision of my brother Pazaratz, J. who was the mother’s counsel at the time of the original order.
[25] In Caterini, Pazaratz relied upon the Farden factors in considering the reasonableness of the claimed expenses in relation to the needs of the parties and children.
[26] I wholly accept the mother’s argument as to the reasonableness of the expenses. The children are both enrolled in full-time programs. Both are on a decided career path. Both applied for and received OSAP loans and grants. The parties can afford to assist their children. As well, the children have worked regularly during the summers.
[27] I accept mother’s submission that it is appropriate to use 100% of the OSAP grants to reduce the costs of their education but that only 50% of their loans should be so applied.
[28] The father argues that there is no evidence before the court that the children would benefit from a retroactive award.
[29] But that argument misses the point. By requiring the father to make a payment, albeit retroactively, towards the cost of his children’s University education, the children will need less of their own funds (or loans) to pay the freight. Of course, that is a direct benefit to the children.
[30] Moreover, the law is clear that mothers receive no benefit from pursuing court proceedings for child support.
[31] The expenses should be shared by the parents, after some contribution by the adult children, in proportion to their income, based, in large part, on the mother’s proposal.
[32] But what of the mother’s claim for retroactive support back to 2009?
[33] First off, let me do summary justice to the father’s plea that because of their alienation from him the mother’s claim be denied. I side with the views of Corbett, J as quoted by Pazaratz, J. in Caterini (paragraph 172). While there seems to be a discretion to take parent-child relationships into account as bearing on child support, if such conduct is ever relevant, it should only be in truly egregious cases of misconduct by child against a payor parent.
[34] In this case, the father relies upon supposition and conjecture for his allegations of alienation. He has not proved this. After all, he was and remains the adult parent. If there was/is alienation, he seems to have taken no steps himself to repair the relationship. He is not a victim here. He took no steps to patch lost conduct with his children.
[35] The original order was made on consent. It would be totally inappropriate to allow the father to resile from his agreed upon obligations, which included section 7 expenses in accordance with the Guidelines.
[36] So I reject the father’s alienation claim as a basis for denying restroactive child support here.
[37] The general rule is that retroactive awards should not reach back more than three years before the application, absent blameworthy conduct on the part of the payor parent.
[38] The father says that there was ample opportunity for the mother to raise a request for further support during the protracted litigation over access, which the father abandoned in January 2011. He also claims that the first time he knew of the mother’s claim for help with the costs of the children’s educational expense was with the service of this motion.
[39] He argues that because the children were alienated from him even to go so far as to change their names, the only claims that this court ought to consider are the prospective claims from the date of the filing of this motion.
[40] But as I said before, he was the adult and he made no real efforts at reconciliation or to learn anything about the children’s circumstances and needs.
[41] He could have made inquiries. He must have known that they were approaching University age and that their expenses would therefore increase.
[42] Had he done so and then made an offer of assistance which was rejected, his position on retroactivity may have had some modicum of merit, but he didn’t and therefore the mother’s claim is not delimited by the date in which she filed the motion.
[43] A good part of the reason for the mother’s delay in claiming enhanced child support lies in the fact that both her original lawyer on the case (Pazaratz) and the lawyer who replaced him (Brown) were appointed to the bench.
[44] So I am satisfied to consider a retroactive award, but not with the reach claimed by the mother. There is no sufficient reason why the mother’s claim ought to reach back more than three years from the date of the motion (January 2013).
[45] From May 2010 to August 2012, Shelby had withdrawn from school and supported herself. Travis only became a full-time student in 2012.
[46] And so I will allow a retroactive claim for the children commencing with the beginning of September 2012.
[47] I am grateful for the very detailed work of the mother’s counsel in laying out all the relevant calculations (shown in the mother’s July 10, 2015 affidavit at paragraphs 12 through 33). I accept as reasonable the children’s budgets set out there.
[48] So, using the chart at paragraph 33 of that affidavit, my calculations would start with “father’s share of Shelby’s first year at Toronto & Sheridon in 2012-2013.” This eliminates the first two sums in the column. That produces a total of $52,045 as the father’s share of educational expense in the relevant period. Those sums include the estimated expenses for the present school year (2015 through 2016).
[49] I find, as a fact, that the father’s share of other section 7 expenses, as detailed in paragraphs 49 through 52 of the mother’s affidavit of January 3, 2013, must be reduced to $975 (56% of $1740 approximately).
[50] The father paid $518 per month based on income of $36,000 a year to date. So, for the relevant period (September 2012 through August 2015) a period of 36 months, this amounts to $18,648.
[51] During that period as per the chart at paragraph 30 of the affidavit at tab 12, the father should have only paid $5088. This amounts to an overpayment of $13,560 in monthly child support. So these calculations can be summarized as follows:
Father’s share of the educational expenses
$52,045
Father’s share of the section 7 expenses
$975
Less overpayment of monthly support
($13,560)
Total Outstanding
$39,460
[52] Accordingly, I fix the support arrears in that amount.
[53] I further order that the father pay and retire those arrears in this fashion:
a. Within 30 days, a payment of $3460;
b. Thereafter, $1500 on the first of every month until it is retired.
[54] I further order that the father pay to the mother the sum of $140 per month from the first of September 2015 to and including the first of April 2016 for the support of Travis. And I then declare that on May 1, 2016 the children should no longer be considered children of the marriage for support purposes.
Costs
[55] Both parties filed cost submissions. Both cost submissions contained exchanged Offers to Settle. The parties exchanged several offers to settle and I only considered their latest ones. But what this shows is that the mother acted reasonably.
[56] The father’s latest Offer (October 3, 2014) provided for no arrears and offered to pay $800 per month child support for the two children from June 2014 to August 1, 2016.
[57] The mother’s latest offer (September 8, 2014) made no claims for child support or section 7 expenses before September 1, 2012 and claims $9041 for the period up to August 31, 2014 and thereafter sough monthly support of $1000 (including section 7 expenses) from May 1, 2014 onwards. By my calculation this amounts to a total of $34,041.
[58] So this judgment resulted in an award that exceeded the mother’s latest offer. The father’s offer didn’t even come close.
[59] So the mother is entitled to her costs. She claims $26,452.44 plus applicable HST on a full indemnity basis. The mother’s submissions do not lay out exactly what the HST claim is, but she does claim $1509.39 for disbursements. She argued that detailed invoices would somehow violate solicitor-client privilege.
[60] My mandate is to award fair and reasonable costs within the reasonable expectations of the losing parties.
[61] Mr. Taylor, for the father, submitted a Costs Summary which, on a full indemnity basis would amount to $42,567.59, including $742.63 for disbursements (and HST) and $4304.96 HST on fees.
[62] It then seems obvious that the mother’s costs claim on a full indemnification basis must be reasonable to the father, and if I allow HST at $2647.56, her costs claims would amount in total to $29,100 accordingly, I fix her costs in that amount ($29,100). The mother has asked me to order that costs be enforced as support by the Family Responsibility Office. This I decline to do.
P.J. Flynn
Released: September 1, 2015
COURT FILE NO.: FS 13-20
DATE: 2015-09-01
ONTARIO
SUPERIOR COURT OF JUSTICE
Lawrence Francis Cawker
Applicant
– and –
Moira Ramsay Hackshaw
Respondent
REASONS FOR JUDGMENT
P.J. Flynn, J.
Released: September 1, 2015